F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 16 2003

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-3266
 v.                                          (D.C. No. 00-CR-40126-01-RDR)
                                                        (D. Kansas)
 ADAM GRABEL GUZMAN,

          Defendant - Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Adam Grabel Guzman attempts to appeal his sentence for conspiracy to

distribute a controlled substance. We hold he has waived his right to appeal.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Guzman pled guilty to Count 1 of a superseding indictment charging

him with conspiracy to distribute 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§

846, 841(b)(1)(A), and 18 U.S.C. § 2. Mr Guzman’s plea agreement provided as

follows:

            3.     Defendant freely, voluntarily, knowingly and
                   intelligently waives any right to appeal or collaterally
                   attack any matter in connection with this prosecution
                   and sentence.
                   A.     The defendant is aware that 18 U.S.C. § 3742
                          affords a defendant the right to appeal the
                          sentence imposed. Acknowledging that, the
                          defendant knowingly waives the right to appeal
                          any sentence within the guideline range applicable
                          to the statute of conviction as determined by the
                          court after resolution of any objections by either
                          party to the presentence report to be prepared in
                          this case, and the defendant specifically agrees not
                          to appeal the determination of the court in
                          resolving any contested sentencing factor. In
                          other words, the defendant waives the right to
                          appeal the sentence imposed in this case except to
                          the extent, if any, that the court may depart
                          upwards from the applicable sentencing guideline
                          range as determined by the court.

Aple. Supp. App. at 10. The prosecutor pointed out this waiver to the court.

Aplt. App. at 116. The court confirmed with Mr. Guzman that he understood the

potential sentence he might receive and that by entering the plea agreement, he

waived his right to appeal. Aplt. App. at 117-18, 122-23.

      A defendant’s knowing and voluntary waiver of the statutory right to appeal

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his sentence is generally enforceable. United States v. Fortier, 

,

1223 (10th Cir. 1999). There are limited exceptions to this general rule. Of

course, if the defendant’s waiver was involuntary or unknowing, the waiver will

not be enforced. Furthermore, where the court relied on an impermissible factor

or where the agreement is otherwise unlawful, the waiver will not be enforced.

See United States v. Cockerham, 

, 1182 (10th Cir. 2001), cert.

denied by 

(2002). Finally, where the sentence exceeds the

statutory maximum or was entered into with ineffective assistance of counsel, the

waiver will not be enforced. See 

this record suggests that Mr. Guzman’s waiver was either

involuntary or unknowing. 1 There is nothing in the transcript to suggest that the

sentencing court relied on impermissible factors. The sentence imposed of 324

months was at the very bottom of the applicable guideline range. There was no

upward departure. The sentence was within the statutory maximum for the

offense of conviction.

      Nonetheless, Mr. Guzman argues that the sentence was unlawful because it

was imposed with reference to the wrong section of the statute. He contends the

charge to which he pled guilty did not state the upper limit of the drug quantity,


      1
        We admonish defense counsel for violating 10th Cir. R. 28.2(A)(2) by
failing to attach to his brief a copy of the district court’s written order ruling on
the objections raised at the sentencing hearing.

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thereby limiting the sentence to a maximum of twenty years, under 21 U.S.C. §

841(b)(1)(C). His argument is based on a Fifth Circuit case which he maintains

requires that the upper range of the drug quantity be explicitly listed in the

indictment. See United States v. Moreci, 

(5th Cir. 2002). We agree

with the government that Moreci actually supports the government’s position,

rather than defendant’s. The Moreci court in fact rejected the defendant’s

argument that he could not have known the maximum penalty when he pled guilty

and that the default penalty must therefore be applied. See 

The Tenth

Circuit cases Mr. Guzman cites simply do not support his argument.

      It is true that a sentencing court may not impose a sentence in excess of the

maximum set forth in 841(b)(1)(C) unless the benchmark quantity is alleged in the

indictment. See United States v. Jones, 

, 1236-37 (10th Cir. 2000).

Here, however, the benchmark quantity of 500 grams was specifically included in

the indictment. Furthermore, the indictment specifies the appropriate statute and

penalty, 21 U.S.C. 841(b)(1)(A), with which Mr. Guzman was charged. Mr.

Guzman pled guilty to Count 1 of the indictment with full knowledge (from the

citation to the statute in the indictment) of the applicable penalty of ten years to

life imprisonment. The sentence he received did not exceed that range. Mr.

Guzman’s argument that his waiver cannot be enforced because the sentence was

illegal is without merit.


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Accordingly, we DISMISS the appeal.

                            ENTERED FOR THE COURT


                            Stephanie K. Seymour
                            Circuit Judge




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